PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ VANCE NORTON; GARY JENSEN; KEITH CAMPBELL; ANTHONEY BYRON; BEVAN WATKINS; TROY SLAUGH; DAVE SW ENSON; JEFF CHUGG; REX OLSEN; CRAIG YOUNG; SEAN DAVIS, Plaintiffs - Appellees,

v. UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, a federally recognized Indian Tribe; BUSINESS COMMITTEE FOR THE UTE TRIBE OF THE UI NTAH AND OURAY RESERVATION, in its official capacity; UTE TRIBAL COURT OF THE UINTAH AND OURAY RESERVATION; HONORABLE WILLIAM REYNOLDS, in his official capacity as Acting Chief Judge of the Ute Tribal Court; DEBRA JONES, individually and as the natural parent of Todd R. Mu rray and as personal representative of th e Estate of Todd R. Murray; ARDEN POST, individually and as the natural parent of Todd R. Murray, Defendants - Appellants. No. 15-4170

_________________________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:15-CV-00300-DB)

_________________________________ FILED United States Court of Appeals Tenth Circuit 

### July 11, 2017
Elisabeth A. Shumaker Clerk of Court2 Jeffrey S. Rasmussen (Thomas W. Frederic ks, Frances C. Bassett, and Jeremy J. Patterson, with him on the briefs), Freder icks Peebles & Morgan, Louisville, Colorado for Defendants-Appellants. Jesse C. Trentadue (Britton R. Butterfield, with him on the brief), Suitter Axland, PLLC, Salt Lake City, Utah, for Anthoney Byron, Be van Watkins, Gary Jensen, Keith Campbell, Troy Slaugh, and Vance Norton, Plaintiffs-Appellees. J. Clifford Petersen, Assistan t Utah Attorney General (Sco tt D. Cheney, Assistant Utah Attorney General, and Sean D. Reyes, Utah Attorney General, with him on the brief), Office of the Attorney Genera l for the State of Utah, Salt Lake City, Utah, for Craig Young, Dave Swenson, Jeff Chugg, Rex Olse n, and Sean Davis, Plaintiffs-Appellees.

_________________________________ Before LUCERO , McKAY , and BACHARACH , Circuit Judges.

_________________________________ LUCERO , Circuit Judge.

_________________________________ This appeal arises from the death of Todd Murray, a Ute tribal member, following a police pursuit on the Uintah and Ouray Indian Reservation (the “Reservation”). Murray’s parents, his esta te, and the Ute Indian Tribe (the “Tribal Plaintiffs”) sued the office rs involved in Ute Tribal Court (the “Tribal Court”) for wrongful death, tres pass, and other torts. The officers then filed suit in federal court against the Tribe, its Business Committee, the Tribal Court, th e Acting Chief Judge of the Tribal Court, and the other Tribal Pl aintiffs. The district court enjoined the Tribal Court action, holding that Nevada v. Hicks, 533 U.S. 353 (2001), bars tribal civil jurisdiction over the o fficers, making exhaustion of tribal court remedies unnecessary. It further determ ined that certain defendants were not entitled to tribal sovereign immunity.3 We conclude that the di strict court erred in ex cusing the officers from exhaustion of tribal remedies with respect to the Tribe’s trespass claim, which alleges that the officers asserted superior author ity over tribal lands and barred a tribal official from accessi ng the scene of the Murray shooting. Although we do not decide today whether the Tribal Court possesses ju risdiction over that cl aim, exhaustion is required unless tribal court ju risdiction is “automatically foreclosed.” Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indian s, 471 U.S. 845, 855 (1985). The officers have not made this showing for the tres pass claim because that claim at least arguably implicates the Tribe’s core sovere ign rights to exclude and to self-govern. We further conclude that this claim is not barred by Hicks, which excused exhaustion based on a state’s overriding interest in inve stigating off-reservation offenses. Such an interest is not at play in this case. Murray was not suspected of committing any off-reservation violation, and the officers were not cross- deputized to enforce state law on the Reservation. However, we agree with the district cour t that the remaining Tribal Court claims are not subject to tr ibal jurisdiction and thus exhaustion was
unnecessary. We also affirm the district court’s c onclusion that the Acting Chief Judge of the Tribal Court is not protected by tribal sovereign immunity under the doctrine of Ex Parte Young, 209 U.S. 123 (1908). But we reverse the district court’s denial of tribal sovereign immunity as to the Trib e, its Business Committe e, and the Tribal Court. Under Ex Parte Young, officials ar e subject to claims fo r prospective relief,4 but the doctrine does not apply to governme nts and their subdivisi ons. See Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 496 (10th Cir. 1998). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1), we vacate in part and remand for further proceedings.
I Todd Murray, a Ute tribal member, died on April 1, 2007, following a police pursuit. Murray was a passenger in a vehicl e that Utah State Trooper Dave Swenson attempted to stop for speeding near to, but ou tside of, the Reservation. Uriah Kurip, the driver, failed to stop and turned onto the Reservation. After an approximately thirty-minute chase, the vehicle ran off the highway and Kurip and Murray jumped

out. Swenson exited his patrol car with his gun drawn a nd ordered Kurip and Murray to the ground. Kurip and Murray fled in opposite directions. Swenson apprehended Kurip quickly without further incident. Shortly after Swenson returned to his ve hicle with Kurip, Vernal City Police Officer Vance Norton, Utah Highway Pa trol Trooper Craig Young, and Uintah County Deputy Anthoney Bryon arrived on the scene. None of these officers, including Swenson, were cros s-deputized to exercise la w enforcement authority on the Reservation. When the additional officers arrived, they began searching for Murray. Norton pursued Murray over tribal tr ust lands located more than twenty-five miles within the Reservation. After finding Murray, Norton ordered him to the ground but Murray did not obey. Norton fi red two shots toward Murray. Murray died from a gunshot wound to the head. The parties disagree whether Murray shot5 himself or was shot by officer s. Raymond Wissiup, a Ute tr ibal member and certified law enforcement officer, arrived shortly th ereafter, but the officers prevented him from accessing the scene. In 2009, Murray’s parents and his estate filed suit in state court against the officers and their employers, asserting co mmon law torts and cl aims under 42 U.S.C. § 1983. After the suit was removed to fe deral court, the dist rict court granted summary judgment in favor of the office rs on the § 1983 claims and declined to exercise supplemental jurisdic tion over the state law claims. We affirmed in Jones v. Norton, 809 F.3d 564 (10th Cir. 2015). While that appeal was pending, Murray’ s parents, his estate, and the Tribe sued the officers in Tr ibal Court, solely asserting tort claims. The officers then filed suit in federal district cour t against the Tribe, its Busi ness Committee, the Tribal Court, William Reynolds in his official capacity as Acting Chief Judge of the Tribal Court, and Murray’s parents. 1 They moved for a preliminary injunction to halt the Tribal Court action. Reyn olds and the Tribal Court moved to dismiss based on failure to exhaust Tribal Court remedies and sovereign immunity. The Tribe and its Business Committee filed a sepa rate motion to dismiss, c ontending that all of the arguments set forth in the prior motion a pplied with equal fo rce and service was improper.

1 The original complaint was filed by th e county and city officers; the state officers subsequently inte rvened as plaintiffs.6 Both motions to dismiss were denied a nd the officers’ motion for a preliminary injunction was granted by the district court. It concluded that the Tribal Court clearly lacked civil jurisdiction over the offi cers, and thus exhaustion of tribal court remedies was not required. The court fu rther held that se rvice was proper. Regarding sovereign immunity , the court analyzed the i ssue only with respect to Reynolds and the Tribal Court, ruling that those two parties were not immune from suit. This timely appeal followed.
II We review a district court’s grant of a preliminary injunction for abuse of discretion. Dine Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016). In conductin g this analysis, we review “t he district court’s factual findings for clear error and its conclusions of law de novo.” Fish v. Kobach, 840 F.3d 710, 723 (10t h Cir. 2016). In granting a prelim inary injunction, the district court concluded that the officers were not required to exhaust trib al remedies because it is “clear that the tribal court lacks jurisdiction.” Bu rrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006). “[T]he proper scope of the tribal exhausti on rule” is a legal issue we review de novo. Kerr-McGee Co rp. v. Farley, 115 F.3d 1498, 1501 (10th Cir. 1997). “[F]ederal courts typically should abstain from hear ing cases that challenge tribal court jurisdiction until tribal court remedies, including tribal appellate review, are exhausted.” Crowe & Dunl evy, P.C. v. Stidham, 64 0 F.3d 1140, 1149 (10th Cir. 2011) (quotation omitted). This rule is grounded in federal po licies supporting tribal7 sovereignty, including: “(1) furthering congressional policy of supporting tribal selfgovernment; (2) promoting the orderly admi nistration of justice by allowing a full record to be developed in the tribal c ourt; and (3) obtaining th e benefit of tribal expertise if further review becomes necessary.” Kerr -McGee, 115 F.3d at 1507 (citing Nat’l Farmers, 471 U.S. at 856-57). Because “the existe nce and extent of a tribal court’s jurisdiction will require a ca reful examination of tribal sovereignty [and] the extent to which that sovereignty has been altered, divested, or diminished . . . that examination should be conducted in the first in stance in the Tribal Court itself.” Nat’l Farmers, 471 U.S. at 855-56; s ee also Iowa Mut. In s. Co. v. LaPlante, 480 U.S. 9, 16 (1987) (“[R]esp ect for tribal legal instituti ons requires that they be given a full opportunity to consider the issues before them and to rectify any errors.” (quotations omitted)). As a prudential rule based on comity, the tribal exhaustion requirement is subject to several exceptions: (1) where an assertion of tribal juri sdiction is motivated by a desire to harass or is conducted in bad faith; (2) where the tribal court action is patently violative of express ju risdictional prohibitions; (3) where exhaustion would be futile because of the lack of an adequate opportunity to challenge the tribal court’s jurisd iction; (4) when it is plain that no federal grant provides for tribal gove rnance of nonmembers’ conduct on land covered by the main rule estab lished in Montana v. United States, 450 U.S. 544 (1981); or (5) it is otherwise clear that the tribal court lacks jurisdiction so that the exhaustion requirement would serve no purpose other than delay. Burrell, 456 F.3d at 1168 (quotations, altera tions, and citations omitted). Stated differently, these exceptions generally apply if tribal court jurisdiction is8 “automatically foreclosed.” Nat’l Farmers, 471 U.S. at 855 (1985). A party seeking an exception bears the burden of “mak[ing] a substantial showing of eligibility.” Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1238 (10th Cir. 2014). Because our court “has taken a strict vi ew of the tribal exhaustion rule,” KerrMcGee, 115 F.3d at 1507, “the exceptions are applied narrowly,” Thlopthlocco, 762 F.3d at 1239. Exceptions typica lly will not apply so long as tribal courts can “make a colorable claim that they have jurisdiction.” Id. at 1240. A In considering whether tribal jurisd iction is “colorable,” Thlopthlocco, 762 F.3d at 1240, we first emphasize that “Indian tribes are unique aggregations possessing attributes of s overeignty over both their me mbers and their territory,” United States v. Mazurie, 419 U.S. 544, 557 (1975). As “a separate people,” tribes retain “those aspects of s overeignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent st atus.” United States v. Wheeler, 435 U.S. 313, 322-23 (1 978) (quotation omitted). In Montana, the Supreme Court confirme d that tribes retain the right “to exercise some forms of civ il jurisdiction over non-Indians on their reservations, even on non-Indian fee lands.” 450 U.S. at 565. But tribal civil jurisdiction generally does not extend to nonmembers, with two excep tions. Id. First, tribes retain the authority to regulate the “activities of nonmember s who enter consensual relationships with the tribe or its members.” Id . Second, a tribe “may also retain inherent power to exercise civil authority over the conduct of non-Indians” if “that9 conduct threatens or has some direct effe ct on the political inte grity, the economic security, or the health or welf are of the tribe.” Id. at 566. 2 We have previously held that Montan a governs tribal ci vil jurisdiction over nonmembers on both Indian a nd non-Indian lands. MacArt hur v. San Juan Cty., 497 F.3d 1057, 1069-70 (10th Ci r. 2007). Although the nature of the property is a factor—and possibly a dispositive one— to consider in determining whet her the [nonmember ] activity falls within either of Montana’s tw o exceptions, the only relevant characteristic for purposes of determin ing Montana’s applicability in the first instance is the memb ership status of the i ndividual or entity over which the tribe is asserting authority. Id. at 1070 (citation omitted). Because the officers are nonmembe r defendants in the Tribal Court action, Montan a applies to this case. In Montana, the Supreme Court “read ily agree[d]” that the tribe had jurisdiction to bar nonmembers from tribal land and recognized that the tribe may place conditions on nonmem bers’ entry onto tribal land over and above the authority that tribes have to regulate nonmember c onduct on reservation land in general. 450 U.S. at 557. After Montana, the Court reaf firmed the principle th at “a hallmark of

2 As the varying language between “ non-Indian” and “nonmember” in these quotes illustrates, the S upreme Court has not been cl ear about whether Montana’s rules regarding tribal civ il jurisdiction apply to all nonmembers or to only nonIndians (i.e., whether Montana limits a trib al court’s civil jurisdiction over Indians who are members of a different tribe). See McDonald v. Means, 309 F.3d 530, 540 n.10 (9th Cir. 2002) (stating that because tr ibes can exercise cr iminal jurisdiction over all Indians regardless of membership, they can also exercise civil jurisdiction over nonmember Indians); id. at 545 (Wallace, J., disse nting) (noting that the Supreme Court has not “answered the quest ion of tribal civil jurisdiction over nonmember Indians”). For consistenc y’s sake, we generally use the term “nonmember” in discussi ng Montana and its progeny, but we do not reach a conclusion on this issue.10 Indian sovereignty is the power to exclude non-Indians from Indi an lands.” Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982). And it has looked to whether a tribe can “assert a landowner’s right to occupy and exclude.” Strate v. A-1 Contractors, 520 U.S. 438, 456 (1997). In Plains Commerce Bank, 554 U.S. 316 (2008), the Court emphasized th at “[t]he status of the land is relevant insofar as it bears on the application of Montana’s ex ceptions.” Id. at 331 (quotation and alterations omitted). It stressed the “critical importa nce of land status” to its jurisdictional analysis, id. at 338, stating that tribal s overeignty “centers on the land held by the tribe and on tribal members within the reservation,” id. at 327. The Court also reiterated that tribes may “exclude outsiders from entering tribal land.” Id. at 328. In discussing the M ontana exceptions, it stated th at “the tribe’s sovereign interests are now confined to managing trib al land, protecting tribal self-government, and controlling internal relati ons.” Id. at 334 (quotations , citation, and alterations omitted). The regulations pe rmitted in Montana “all flow directly from these limited sovereign interests.” Id. at 335. “The tribe’s ‘traditio nal and undisputed power to exclude persons’ from tribal land, for exampl e, gives it the power to set conditions on entry to that land via licensing requirement s and hunting regulations.” Id. (quoting Duro v. Reina, 495 U.S. 676, 696 (1990)). In light of these repeated confirmations of tribes’ right to exclude nonmembers from tribal lands, we think it plausible that the Tribal Court possesses jurisdiction over the trespass claim. See Attorney’s Process & Investig ation Servs., Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d 927, 937 (8th Cir. 2010) (“Each claim must be11 analyzed individually in te rms of the Montana principles to determine whether the tribal court has subject matt er jurisdiction over it.”). The Court has described the right to exclude as within the regulatory, rath er than adjudicative, authority of tribes. See, e.g., Plains Commerce Bank, 554 U.S. at 335. But tribal court jurisdiction “turns upon whether the actions at issue in the litigation are regulable by the tribe.” Hicks, 533 U.S. at 367 n.8. And “where tribes possess author ity to regulate the activities of nonmembers, civil jurisdiction over disputes aris ing out of such activities presumptively lies in the tribal courts.” Strate, 520 U.S. at 453 (quotation and alteration omitted). In Attorney’s Process & Investigation Services, the Eighth Circuit concluded that a tribal court possessed jurisdiction over a similar trespass claim. 609 F.3d at 940. There, a group of nonm embers, acting at the behest of a tribal government faction, forced their way into the tribe’s casino and governme nt offices. Id. at 932. The Eighth Circuit concluded that the tribe’ s trespass claim soug ht to regulate the nonmembers’ “entry and cond uct upon tribal land” and “accordingly stem[med] from the tribe’s landowner’s right to occupy and exclude.” Id . at 940 (quotation omitted). Because the nonmembers’ trespass on govern ment offices “direc tly threatened the tribal community and its ins titutions,” the court held that the actions “threatened the political integrity, the economic security, and the health a nd welfare of the Tribe.” Id. at 939, 940 (quot ation omitted). Similarly, in Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842 (9th Cir. 2009), the Ninth Circuit held that tribal exhaustion was necessary for a12 trespass claim brought in tribal court ag ainst a nonmember who started a forest fire on the reservation. Id. at 849-50. “Trespass regulations plainly concern a property owner’s right to exclude, and regulations pr ohibiting destruction of natural resources and requiring a fire permit are related to an owner’s right to occupy.” Id. at 850. Because the trespass destroye d the tribe’s natural resources , the suit was “intended to secure the tribe’s political and economic we ll-being” and thus fit within the second Montana exception. Id. Returning to the case at bar, the alleged harm to the Tribe itself from the officers’ trespass is arguabl y less severe than in Attorn ey’s Process & Investigation Services and Elliott. 3 But as in Attorn ey’s Process & Inves tigation Services, the Tribal Court complaint claims that the of ficers interfered with tribal authority over

3 The officers contend that we should re view the facts in their federal court complaint under an ordinary motion to dism iss standard. See As hcroft v. Iqbal, 556 U.S. 662, 678 (2009). Howeve r, the Tribal Plaintiffs ar gue that the Tribal Court complaint contains the relevant allegations . This dispute is immaterial to our disposition. The Tribal Court complaint is attached to th e officers’ federal complaint. We have recognized that “a doc ument central to the plaintiff’s claim and referred to in the complaint may be considered in resolv ing a motion to dismiss, at least where the document’s auth enticity is not in dispute. ” Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253 -54 (10th Cir. 2005). Accordingly, we may consider the Tribal Court complaint in assessing the officers’ claims to relief. Whether the Tribal Court possesses jurisdiction necessa rily turns on the allegations contained in the Tribal Cour t complaint. See A ttorney’s Process & Investigation Servs., 609 F.3d at 937 (“In analyzing the ju risdictional issue we rely on the record developed in the tribal c ourts and the allegations in the Tribe’s complaint.”). A key rationale underlying th e tribal exhaustion requirement is to provide federal courts with “t he benefit of a full factual record on the relevant issues and the benefit of tribal court exper tise.” Thlopthlocco, 762 F.3d at 1237. Underlining this purpose, federal review of tribal jurisdiction relies on the factual record developed in tribal court. See Mustang Prod. Co. v. Harrison, 94 F.3d 1382, 1384 (10th Cir. 1996) (reviewing tribal c ourt’s factual findings for clear error).13 tribal trust lands. Specifical ly, it asserts that the officers prevented Wissiup, a tribal member and certified law en forcement officer, from accessi ng the site of the shooting or attending to Murray as he bled to d eath. Thus, in add ition to impinging upon a “hallmark of Indian sovere ignty” by trespassing, Merr ion, 455 U.S. at 141, the officers colorably thr eatened the “political integrity” of the tribe, Montana, 450 U.S. at 566, by improperly asserting their own aut hority as superior to that of a tribal official on tribal lands. The second Montana exception may be i nvoked only if the challenged conduct could “fairly be called catastr ophic for tribal self-governmen t.” Id. at 341. We stress that we are not deciding today whether the Tribal Court possesses jurisdiction, but merely whether it can “mak e a colorable claim that [it has] jurisdiction.” Thlopthlocco, 762 F.3d at 1240. It may we ll be that upon further examination, the Tribal Court lacks jurisdicti on over the trespass claim. Bu t we think it plausible that this claim fits within th e second Montana exception. A power is an “essential attribute of Indian sovereignty” if it “i s a necessary instrument of self-government and territorial management.” Merrion, 455 U.S. at 137. Th e particular allegations of this trespass claim may qualif y as a critical undermining of the Tribe’s ability to engage in self-government a nd territorial management. Wh ether such allegations are sufficiently catastrophic would be nefit from full consideration in the Tribal Court. See Kerr-McGee, 115 F.3d at 1507. Thus, we rule that the distri ct court should abate further proceedings regarding this claim until the officers have exhausted Tribal14 Court remedies. See Thlopthlocco, 762 F.3d at 1241 (“[A]batement of this action is preferable to dismissal pe nding exhaustion of tribal court remedies.”). We reach the opposite conclusion as to the remaining clai ms in the Tribal Court complaint. Although those claims—false imprisonm ent, false arrest, assault and battery, wrongful death, spoliation of evidence, and conspiracy—also arose on tribal land, they do not implic ate the Tribe’s core soverei gn interest in excluding nonIndians from tribal lands, or any of the othe r tribal interests at stake in Montana’s second exception. In Strate, the Supreme Court held that a tribal court lacked jurisdiction over tort claims relating to a traffic accide nt brought by a nonmember and her children, who were tribal members, against nonmembe r defendants. 520 U. S. at 442-43. It stated that negligent drivers “endanger all in the vicinity, and surely jeopardize the safety of tribal members, ” but “if Montana’s second exception requires no more, the exception would severely shrink the rule.” Id. at 458. As a result, the Court concluded that the second Montana excepti on did not apply. Id. at 459 (quotation omitted). As in Strate, the remaining Tribal Cour t claims concern actions that threatened an individual tribal member but do not th reaten the Tribe as a whole. The sole distinction offered by the Tribal Plaintiffs is that their clai ms occurred on tribal lands, whereas the highway in Strate was an alogous to non-Indian fee land. 520 U.S. at 456. Land status is a highly relevant concern, a nd in some cases, may be dispositive. MacArthur, 497 F.3d at 1069-70. But we are bound by our prior15 precedent holding that Montan a governs both Indian and non-Indian lands. Id. And the Supreme Court has warned that “Montana’s second exception can be misperceived.” Atkinson Trading Co. v. Shirley, 532 U.S. 645, 657 n.12 (2001) (quotation omitted). As the Ninth Circuit has explained: To some extent, it can be argued that torts committed by or against Indians on Indian land always threaten or have some direct effect on the political integrity, the econom ic security, or the heal th or welfare of the tribe. But this genera lized threat that torts by or against its members pose for any society, is not what the second Montana exception is intended to capture. Philip Morris USA, Inc. v. King Mountain T obacco Co., 569 F.3d 932, 943 (9th Cir. 2009) (quotation and alterati ons omitted). Without some plausible argument as to how the remaining torts claims rise above this “generaliz ed threat,” we cannot hold that the second Montana exception applies. Id.; see MacArthur, 497 F.3d at 1075. The Tribal Plaintiffs also refer us to Williams v. L ee, 358 U.S. 217 (1959), in which a nonmember plaintiff su ed tribal members for acti ons that occurred on Indian lands. Id. at 217-18. We agree with the Ni nth Circuit, however, that the party status of the nonmember is releva nt. See Philip Morris USA, 569 F.3d at 940. When a nonmember plaintiff sues a tribal member defendant, the suit in effect seeks to regulate the tribal member, im plicating the “right of the Indians to make their own laws and be governed by them .” Hicks, 533 U.S. at 361. Accordingly, “Williams makes clear that tribal cour ts have exclusive jurisdictio n over suits against tribal members on claims arising on the reservati on.” Philip Morris USA, 569 F.3d at 940. Yet when a tribal member hales a nonmembe r into tribal court as a defendant, a16 tribe’s interest in self-gove rnment is less direct because the suit concerns nonmember conduct. See id.; see al so MacArthur, 497 F.3d at 10 75 (no tribal jurisdiction because the right at issue was that of the tribe “to make it s own laws and have others be governed by them, not the right to se lf-government”). In Strate, the Court specifically framed the issue as “the adjudicatory author ity of tribal courts over personal injury actions against defendants who are not tribal members.” 520 U.S.
at 442. Although we conclude that exhaustion is necessary fo r the trespass claim, the Tribal Plaintiffs have not set forth a th eory under which their remaining claims are plausibly subject to a Montana exception. 4 Therefore, we conclude that tribal exhaustion of those claims is not required.
B Notwithstanding the Tribe’s right to exclude, the district court concluded that Hicks bars tribal jurisdiction over all of the Tribal Plainti ffs’ claims. In Hicks, the Supreme Court did not require exhaustion because it was “clear” that tribes lack authority over state law enforcement office rs executing search warrants related to off-reservation crime. 533 U.S. at 374. Although the cause of action against the officers arose on tribal land, the Court reje cted the notion that this status alone afforded the tribe ju risdiction over the nonmember office rs. Id. at 360. The Hicks opinion acknowledges “that tribal ownership is a factor in the Montana analysis, and

4 The Tribal Plaintiffs do not argue that the first Montana exception, concerning consensual relations hips, applies to these claims.17 a factor significant enough that it may sometimes be dispositive.” Id. at 370 (quotation and alteration omitte d). But tribal ownership was not dispositive in Hicks because “the State’s interest in pursuing o ff-reservation violations of its laws,” id., outweighed tribes’ sovereign right to “m ake their own laws and be governed by them,” id. at 361. Notably, the Hicks Court expressly li mited its holding to “the question of tribal-court jurisdiction over state officers enforcing state law” and left open the issue of tribes’ civil jurisdiction over nonmember defendants generally. Id. at 358 n.2; see also id. at 371 (noting that the case concerned only a “narro w category of outsiders”). Thus, the question before us is whether this case sufficiently mirr ors Hicks so as to compel its narrow holding to apply. Again, we do not decide if the Tribal Court ultimately possesses civil juri sdiction over the officers, but rather if the officers have met their present substantial burden to show that the Tribe’s lack of jurisdiction is “so patently obvious as to defy exhaustion.” Thl opthlocco, 762 F.3d at 1239. We conclude that they have not. The facts in this case differ from those in Hicks in a critical way: there is no claim that Murray was suspec ted of committing an off-rese rvation crime. Although the driver was speeding outsid e of the Reservation, Murray was merely a passenger. To the extent that Murray’s running aw ay from State Trooper Swenson could be considered an offense, see Utah Code § 41-6a-209 (disobeying a lawful order of a law enforcement officer), this crime does not fit within Hi cks’ confines. Murray fled on tribal lands. Cf. Hicks, 533 U.S. at 364 (involving an off-r eservation crime).18 When the officers began chasing Murray on foot, the driver of the vehicle had already been apprehended. It is not clear from the existing record whether the officers’ pursuit of Murray constituted a c ontinuation of the prior chase or an independent search. See generally Wels h v. Wisconsin, 466 U.S. 740, 753 (1984) (hot pursuit doctrine requires an “immediate or continuous ” chase of a suspect from a crime scene); see also Stant on v. Sims, 134 S. Ct. 3, 6 (2013) (per curiam) (hot pursuit doctrine does not apply to a susp ect who “had escaped from the police 30 minutes prior and his wher eabouts were unknown”). Further, the officers—who were not cr oss-deputized to enforce state law on the Reservation—did not possess criminal jurisdiction over Murray for any onreservation offense. See Ross v. Neff, 905 F.2d 1349, 1352 (10th Cir. 1990) (absent a special grant of jurisdicti on, states lack authority ov er crimes by tribal members committed in Indian countr y); see also Ute Indian Tr ibe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000, 1004 (10th Cir. 2015) (Utah has not been granted jurisdiction to prosecute Indians for offenses in Indian country); cf. Hicks, 533 U.S. at 362 (noting that states have cr iminal jurisdiction over Indians for crimes committed off the reservation) . In Hicks, the state offi cials acted in concert with tribal authorities on a tip from a tribal police officer, and they secured a tribal court warrant prior to the challenged search. 533 U.S. at 356. Thos e circumstances are plainly absent in this case. Given that the chief concern drivi ng the Court in Hicks was the state’s paramount in terest in investigating o ff-reservation crimes, id., we19 cannot say that a similar state interest is implicated when state officers pursue a tribal member on tribal land for an on-reservati on offense over which they lack authority. C The officers also argue that the Tribal Plaintiffs filed their suit with a desire to harass or in bad faith. See Burrell, 456 F.3d at 1168. Although the bad faith exception language from National Farmers does not indicate who it is that must act in bad faith, see 471 U.S. at 856 n.21, we ag ree with the Ninth Circuit that “the interpretation most faithful to National Farmers is that it mu st be the tribal court that acts in bad faith to exempt the party from exhausting availa ble tribal court remedies,” Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F. 3d 1196, 1201 (9th Cir. 2013). This exception was imported from Juid ice v. Vail, 430 U.S. 327 (1977). There, the Court concluded that a state proceeding was not conducted in bad faith even if the plaintiffs acted in bad faith because there we re no such “allegations with respect to appellant [state cour t] justices who issued the cont empt orders.” Id. at 338. The bad faith exception “may not be utilized unless it is alleged and proved that they [the state court justices] ar e enforcing the contempt pro cedures in bad faith or are motivated by a desire to harass.” Id. The Ninth Circuit explained that, under a contrary reading, “[a] party would need only allege bad faith by the opposing party, or a third party, to remove the case to federal court.” Gr and Canyon Skywalk, 715 F.3d at 1201. “Comity principles require that we trust that our tribal court counterparts can identify and punish bad faith by litigants as readily as we can.” Id.20 Because the officers do not allege bad fait h on the part of the Tribal Court, that exception does not apply to this case. We also reject the officer s’ arguments that they will suffer undue bias and a lack of due process if subjected to tribal jurisdiction. The offi cers offer little support for their allegations, which boil down to baseless “attacks” on the competence and fairness of the Ute Tribal Cour t. Iowa Mut. Ins, 480 U.S. at 19. The Supreme Court has already explained that such arguments are contrary to federal policy and thus have no bearing on our tribal exhaustion anal ysis. See id.; see also Burrell, 456 F.3d at 1168 (“Allegations of local bias and tr ibal court incompeten ce . . . are not exceptions to the exhaustion requirement.” ). The Court has also “repeatedly” recognized tribal courts “as appropriate forums for th e exclusive adjudication of disputes affecting important personal and property interest s of both Indians and nonIndians.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978) (emphasis added); see Wheeler, 435 U.S. at 332 (“[T]ribal courts are important mechanisms for protecting significant tribal interests.”). Although it is true that the Bill of Right s does not itself constrain tribal court proceedings, see Talton v. Mayes, 163 U.S. 376, 382-85 (1896), this does not leave the rights of nonmembers unprotected in trib al courts. The Indian Civil Rights Act (“ICRA”), 25 U.S.C. §§ 1301-0 4, expressly provides that no tribe may “deny to any person within its jurisdiction the equal protect ion of its laws or deprive any person of liberty or property without due process of law.” § 1302(a)(8) (emphasis added). See21 also Iowa Mut. Ins., 480 U. S. at 19 (noting that ICRA “provides non-Indians with various protections against unfair tr eatment in the tribal courts”). Making good on these due process guarant ees, nearly five decades of tribal cases applying ICRA show that tribal courts protect th e rights of both member and nonmember litigants in much the same way as do federa l and state courts. See Matthew L.M. Fletcher, Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited, 84 U. Colo. L. Rev. 59, 75 (2013) (in a 2008 study, “[o]f the 120 cases involving an ICRA issue, tribal court judges cited federal and state case law as persuasive (and often controlling law) in 114 cases (95 per cent)”). And tribal courts often provide litigants with due process that “ex ceed[s] the protections offered by state and federal courts.” Matthew L.M. Fletcher, American Indian Tribal Law 325 (2011). Moreover, empiri cal studies demonstrate that tribal courts are evenhanded in dispensing justice to nonmembers. See, e.g., Bethany R. Berger, Justice and the Outsider: Jurisdicti on Over Nonmembers in Tribal Justice Systems, 37 Ariz. St. L.J. 1047, 1047 (2005) (“Navajo appella te courts are remark ably balanced in hearing cases involving outsiders . . . [a nd this finding] is supported by a more limited review of decisions by other tribal courts.”); Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constituti onal Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479, 578 (200 0) (concluding from a study of twelve years of decisions from appr oximately twenty-five tribal courts that22 “tribal courts have [not] succumbed to th e temptation to favor the insider at the expense of outsiders”). 5
III District court denial of a motion to di smiss based on tribal sovereign immunity is subject to interlocutory appellate jurisdiction. See Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F. 3d 1173, 1177 n.1 (10t h Cir. 2010). We

5 The officers assert two additional argum ents in conclusory fashion. First, they state that tribal exhaustion is not necessary based on an “express jurisdictional prohibition[].” Burrell, 456 F.3d at 1168 (q uotation omitted). But they fail to identify any such provision. “We do not consider unsupporte d and undeveloped issues.” Moore v. Gibson, 195 F. 3d 1152, 1180 n.17 (10th Cir. 1999). Second, the officers argue that th e Utah Governmental Immunity Act (“UGIA”) and/or sovereign immunity shield them from suit in Tribal Court. But their cursory discussion of these immunities falls far short of the “substantial showing of eligibility” for an exception to the general trib al exhaustion rule that our precedent requires. Thlopthlocco, 762 F.3d at 1238. As with the officers’ other arguments, we conclude they have not sh own that sovereign immunity or the UGIA prevent the Tribal Court from making a “colorab le claim” of jurisd iction. Thus, their arguments should be addr essed first to the Tribal Court, even if they ultimately prove valid. Id. at 1240. Sovereign immunity does not bar claims against a state officer sued in his individual capacity as long as the relie f sought would not ope rate against the sovereign. See Cornforth v. Univ. of Okla. Bd. of Regents, 263 F.3d 1129, 1133-34 (10th Cir. 2001). And it is unclear whether the UGIA app lies in Tribal Court with respect to nonmembers who co mmit torts on tribal land. The Supreme Court has held that state governmental immunity acts do not govern conduct occurring in another state. See Nevada v. Hall, 440 U.S. 410, 414, 426 (1979). The analysis for Indian land differs in some respects. The Court has stated that in determining whether “state law [can] be applied on Indian reservati ons,” we must consider “whether the application of that law woul d interfere with reservation self-government.” Organized Vill. of Kake v. Egan, 369 U.S. 60, 67-68 (1 962). For the reasons stated supra, the Tribe’s interest in protecti ng its right to exclude may qua lify as necessary for selfgovernment. Although at least one distri ct court decision has held that the UGIA does apply on tribal land, MacArthur v. San Juan Cty., 391 F. Supp. 2d 895, 1036-37 (D. Utah 2005), we conclude the issue is reasonably debatable such that tribal exhaustion is not excused.23 review a district court’s denial of tribal sovereign immunity de novo. Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007). In Crowe & Dunlevy, we concluded that tribal sovereign im munity is subject to the Ex Parte Young excepti on for suits against tribal o fficials “seeking to enjoin alleged ongoing violations of federal law.” 640 F.3d at 1154. We held that the exception extended to suits seeking to enjo in “unlawful exercise of tribal court jurisdiction.” Id. at 1155. The district court relied on Crowe & Dunlevy in denying sovereign immunity to Reynolds and the Tribal Court. It did not specifically address whether the remaining defendants were ent itled to sovereign im munity but denied their motion to dismiss. We agree that Reynolds falls s quarely within the Ex Parte Young exception. He is a tribal official, sued in hi s official capac ity, in a suit seeking to halt an allegedly unlawful exercise of tribal court jurisdiction. Id. Although the Ex Parte Young doctrine perm its suits against officials, it “has no application in suits against the States and their agencies, which are barred regardless of the relief sought.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see also Higganbotham v. Okla. ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 644 (10th Ci r. 2003) (Ex Parte Young exception did not apply because “the plaintiff has directly sued the stat e and its agencies se eking declaratory and injunctive relief”); Buchwald, 159 F.3d at 496 (although Ex Parte Young does not permit suit against “state agencies, plaintiff may main tain an action against the individual defendants in th eir official capacities”).24 Applying those principles, we conclude th at the Tribe, its Business Committee, and the Tribal Court are not subject to the Ex Parte Young exception because the complaint asserts clai ms against those trib al entities rather th an their constituent officials. 6 As with a state and its agencies, th e Tribe and its subdi visions may not be sued in the same manner as its officials. See Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1292 (10th Cir. 2008) (“Tribal immunity extends to subdivisions of a tribe . . . .” ). The officers have not sugge sted that tribal sovereign immunity has been waived or abrogated by Congress. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). Accordingly, we conclude that the Tribe, its Business Committee, and the Tribal Court are ent itled to tribal sovereign immunity. 7
IV Because Tribal Court jurisd iction over the Tribe’s trespa ss claim is colorable, we hold that the officers may not seek to enjoin that clai m prior to exhausting Tribal Court remedies. However, we agree with th e district court that tribal exhaustion is not required for the remaining claims in th e Tribal Court complaint. We further conclude that the Tribe, its Business Comm ittee, and the Tribal Court are entitled to

6 As noted above, the district court di d not expressly rule whether the Tribe and its Business Committee ar e entitled to trib al sovereign immunity. However, those entities incorporated th e arguments raised by Reynolds and the Tribal Court in their motion to dismiss, which the district c ourt denied. We thus conclude the denial of immunity to the Tribe and its Busi ness Committee is properly before us. 7 The Tribe and its Business Committee also argue that th e district court incorrectly denied th eir motion to dismiss based on im proper service. Our sovereign immunity ruling obviates the need to address that issue.25 tribal sovereign immunity, but that Reynol ds is not so entitled under the Ex Parte Young exception. Accordingly, we VACATE the district court order granting a preliminary injunction and denying the de fendants’ motions to dismiss. We REMAND for further proceedings cons istent with this opinion.